W.S Sivachakravarthi And Others v. W.S Sivasankaran And Others.

(RAMAKRISHNAN J.)

O.S.A. Nos. 90 and 98 of 1963 are directed against the judgment and decree of Sadasivam, J. in O.S. 57 of 1957, and O.S.A 11 of 1964 is directed against the order made in Appn. No. 1784 of 1963 in the said O.S. 57 of 1957.

The suit was filed for partition and separate possession of the share of the plaintiffs in the plaint schedule properties. There is a fairly elaborate genealogical tree which forms part of the record. The correctness of the relationship set out therein is admitted by all the parties, The first defendant Seshachala Gramani was alive, when the suit was filed by the plaintiffs. He died subsequently an 4th June 1958. Vaillammal was admittedly his first wife, who died in 1947. Plaintiffs 1, 2, 3 and 4 are the grandsons of Seshachala through his deceased son Sivagnanam. Sivagnanam's second wife Ranganayaki is the fifth plaintiffs. Sivagaanam's daughter through his second wife is the sixth plaintiff. Only Seshachala Gramani was impleaded, when the plaint was fifed, as the first defendant. After his death, pendente lite , a number of descendants were added, at the instance of the plaintiffs and some on their application. The legal representatives added without protect are Gaanambal, defendant 4, Jagadambal, defendant 5 daughters of Seshachala through Valliammal, Shanbagavalli Ammal defendant 6 granddaughter of Seshachala through Valliamma and Ramachandran defendants 9 guardian through his deceased son Senthamaral. Defendants 2, 24, 25 are the grandchildren of Sivagnanam through his first wife's son Shanmugham deceased, and defendants 26, 27 and 28 pre the grand children of Sesachala through Valliammal and Sivaprakasam deceased son, Defendants 7 and 8 Girija Shanker and Parvathi claim to be the son and daughter of Palaniammal, daughter of Seshachala through his second wife Rajammal, deceased. Their proposed addition as legal representatives was contested by the plaintiffs in proceedings before the Master of this court, where evidence was recorded at length. The Mister allowed them to be impleaded as the legal representatives. But the question whether they are proper legal representatives again came up for decision in the suit. The plaintiffs' contention was that Rajammal was already married to one Kuppuswami Gramani, whom she deserted and passed into concubinage of Seshachala Gramani and that Palaniammal was Rajammal's daughter born to Kuppuswami Gramani and not Seshachala.

Another group of legal representatives comprised defendants 10 and 11 to 23. Defendants 10 and 21 claim to be the sons of Seshachala through his third wife Apuroopammal deceased, Defendants 11 to 20 are the children of defendant 10 and defendants 22 and 23 are the son and daughter of defendant 21. Their addition as legal representatives was also challenged by the plaintiffs. The contention of the plaintiffs was that Apuroopammal was also married with a husband living when she began to live with Seshachala Gramani, and therefore defendants 10 to 22 were only illegitimate sons of Seshachala Gramani and therefore they could not be proper legal representatives. This contest about the status of Rajammal and Apuroopammal, parentage of Palaniammal and the right of the abovesaid group of defendants, who claimed to be the legal representatives of Seshachala Gramani, to a share in his properties, whether ancestral or self acquired, formed one of the main points of controversy in issue in the suit.

Next, as regards properties, Seshachala Gramani lived far beyond the limit of the biblical three secure years and ten. When he died on 4th June 1958, he was nearly 85 years of age. During his lifetime he had conduced a flourishing business as teddyshop renter. After prohibition was introduced in the State in 1947, be seems to have invested moneys in a large scale in the acquisition of shares. Therefore when he died, there was a considerable extent of immoveable properties in the shape of houses and gardens, and moveable properties in the shape of shares. The plaint schedule I gives a list of 12 items of immoveable properties left behind by the first defendant worth about Rs. 1,43,500 and plaint schedules II and III contain a list of shares worth about Rs. 3,00,000. The point to note about these shares is that they remain either in the joint names of defendants 1 and 7 or defendant 7. Defendant 7, as mentioned already, is the son of Palaniammal, the daughter of Rajammal, the second wife of Seshachala Gramani.

The claim of the plaintiffs in regard to these properties was that they are the ancestral properties of Seshachala Gramani in which they were entitled to a share under the Hindu Law. During the lifetime of Seshachala Gramani, he had made settlements of several items of properties as fellows: Under Ex. P. 5 dated 24th January 1922, a release deed by Sivaprakasam (son through Valliammal) in favour of Seshachala Gramaal, the latter got a number of properties. Shortly thereafter, Balakrishnan, brother of Sivaprakasam, filed a suit attacking the above release deed in C.S. No. 289 of 1922. This led to a compromise decree Ex. P. 8(a) dated 20th October 1922, under which Balakrishan was given some properties. Several years later, Sivakolunda, son of Aparoopammal, who is defendant 10 in the suit, filed a suit C.S. 141 of 1941. This led to two settlement deeds, Ex. P. 13 by Seshachala in favour of Sivakolundu and Ex. P. 14 by Seshachala in favour of Sivabhushanam, both on 15th February 1942. The plaintiffs have attacked the validity of these settlements and claimed that the properties thus settled are ancestral should also be brought late the hotchpot for division.

Sadssivam J found that Rajammal and Apuroopammal were the legally married wives of Seshachala, being the second and third wife respectively. He found that Palaniammal was born to Seshachala Gramani through Rajammal. As a result of this finding, he held that the children of Seshachala Gramani through the said Rajammal and Apuroopammal who had sought to come on record as the legal representatives, are Seshachala Gramani's representatives. In regard to the properties, the finding of the learned Judge was that item 1, house No. 4 Thulsinga Gramani Street, and item 2 garden and bazar known as Samadhi thottam in Nainlappa Naicken street alone were the ancestral properties but the rest were Seshachala's self acquisitions. The learned Judge found that the shares in the II Schedule which stood in the joint names of Seshachala and defendant 7, Girija Shankar were also Seshachala's self-acquisition. In accordance with that finding, the learned Judge passed a preliminary decree for partition of the joint family properties. In respect of the remaining properties and the shares the learned Judge decreed that the parties were entitled to share them as the heirs of Seshachala Gramani. The learned Judge directed that the actual division of the properties by metes and bounds should be made by a Commissioner being appointed for the purpose.

Against the decision of Sadasivam, J. O.S.A. No. 90 of 1963, is filed by the plaintiffs. O.S.A. 98 of 1963 is filed by defendants 7 and 8 attacking that part of the decision of the learned Judge which held that this shares were the self acquired properties of Seshachala Gramani in which all hit heirs are entitled to obtain a share under the Hindu law of Succession. O.S.A. 11 of 1964 is directed against the order of the learned Judge on an interlocutory application directing the seventh defendant to hand ever the shares mentioned in schedule B to the preliminary decree to the Receiver pendente lite . The appeal is filed by the seventh defendant.

The points for determination in these appeals are: (1) Were Rajammal and Aparoopammal the legally married wives of Seshachala Giamani entitling their children and their descendants to a share in his properties, whether self acquired or ancestral; (2) Was Palaniammal, the daughter of Rajammal, born to seshachala Gramani, (3) Are the items in schedule I other than itams 1 and 2, and the secaritles in the other schedules, the ancestral properties or the self-acquired properties of Seshachala Gramani, and (4) is the seventh defendant entitled to a separata right in the shares mentioned in schedule B to the preliminary decree.

Points (1) and (2): The evidence adduced for establishing these points was oral as well as documentary. The learned Judge, after a detailed reference to the oral evidence, has made the bread comment that the oral evidence on the side of the parties who put forward the concubinage of Rajammal and Apuroopammal and the illegitimacy of their offspring is unreliable and discrepant and that a more satisfactory evidence is afforded by documents as wall as by the unmistakable conduct of Seshachala Gramani at material times in the past daring his long life.

In regard to the concubinage of Rajammal, oral evidence was given by D.W. 5, D.W. 6, D.W. 7 and P. W. 1.

[The discussion of facts is omitted—Ed.]

There was farther evidence that Palani Ammal got patta for the lands in 1925—Vide Ex. B.12 kist receipt. From this document, it was sougnt to be inferred that Palani Ammal got the above survey numbers as the daughter of Kuppaswami, a circumstance which would render probable the case that Rajammai was previously married to Kuppuswami and that Palani Ammal was his daughter.

To begin with, this document will have no tearing to prove the exact relationship of Rajammal and Kuppaswami, whether they were marauder net. Secondly, the absence of any entry in the encumbrance certificates showing a transfer to Paianiammal cannot ipso facto lead to the Inference that Palani-Ammal must have inherited the property from Kuppuswami or that she is his daughter. There is evidence given by D.W. 5 that Kuppuswami was indebted, that the debts were discharged by Seshachala and that he teak steps and got the pattas transferred in the name of Palaniammal. The learned Judge points out that, ‘If this statement is true, Palaniammal could no have inherited the property from Kuppuswami” Further, it does not rule eat a possibility that Seshachala, after di scharging the prior debts on the property, got Into possession of the property, treating it as security for the debts of Kuppuswami that he had repaid, and that with the passage of years he asserted title and get the patta transferred to Palaniammal. In the above state of affairs the most ellacaing evidence would be the evidence of the patta transfer proceedings, at they would show in whit capacity Palaniammal's name was substituted in the patta in the place of Kuppuswami. But an document connected with patta transfer is prefaced. It is said that the relevant eriglaal records of the Revenue department have been destroyed by efflux of time. Another argument which Sri M.S. Venkatarama Iyer put forward in this connection is that, if Palaniammal inherited the property from Kuppuswami, she would have done so as a limited owner. But in the settlement deeds above referred to, the property is described as the absolute property of Palaniammal. The settlement deeds of Palaniammal are attested and ratified by other members of the family. If there was any doubt about Palaniammal's title, whether absolute or limited, these people would have taken care to say in the settlement deeds that her interest was only as a limited owner to her father's property. But the recital about her absolute interest is inconsistent with her getting the property by succession from Kuppuswami.

When Sivancndam, son of Seshachala through Rajammal, died as a young boy of 11 years, an elaborate decorated tombstone was put up by the members of the family, A photograph of the tombstone with its negative has been filed in this case, as Ex. D.46. The parents of the boy are described therein as Kajammal and Seshachala Gramani. It is very unlikely that Seshachala would have gone to the extent of putting a costly tombstone for an illegitimate son and described his mother as his wife.

As regards Apuroepammal, there is the oral evidence given by D.W. 6 Gnanambal that Seshachala brought Apuroepammal as a young to his house to assist Valliammal, the first wife who had borne two children to Seshachala, and that, at the instance of Valllammal, Seshachala married Apuroepammal under the Kattu Thali form. There is no allegation in the case of Apuroepammal that she was the wife of somebody else, unlike in the case of Rajammal. The clinching documentary evidence mentioned above skews that Seshachala and other persons who came into contact with him, at the relevant periods, treated Apuroepammal as the wife of Seshachala, land her children as Seshachala's children. Balakrishan Gramani, son of Seshachala through Valliammal, filed O.S. No. 189 of 1922 for partition against Seshachala. In his written statement, Ex. P-7, Seshachala stated that Apuroopammal was his wife by kattu thali marriage and the two sons by her were also entitled to equal share with the plaintiff therein. Seshachala himself, subsequently, in a suit filed against him for partition, G.S. No. 141 of 1941, by Sivakolandu, pleaded in his written statement Ex. P-10, that Apuroopammal was only kept by him as his concubine, that she was farther a married woman, whose husband was alive even then and that therefore Apuroopammal was act capable of being viewed under the Hindu Law as a permanently kept concubine, so as to give any children born to her the status even of Illegitimate children. This attitude taken by Seshachala in 1941 is in fact, in contradiction with the attitude takes by him in his written statement in 1922. It is also inconsistent with the attitude taken by him in the other documents mentioned earlier. Finally, Seshachala did not press his defence in C.S. No. 141 of 1941 and ultimately in Ex. P-13, dated 15th February, 1942, (settlement deed), Seshachala has described Sivakelundu, as his son. It is, therefore, quite unlikely that the plea raised by Seshachala in his written statement in C.S. No. 141 of 1941 was raised merely for the purpose of non-suiting the plaintiff therein. But better counsel prevailed and Seshachala admitted Sivakolundu's states as his son, therefore, the recital in the written statement C.S. No. 141 of 1941 cannot be considered as in any way affecting the evidentiary value of the rest of the documents which go to confirm the status of Apuroopammal as the wife of Seshachala.

The position of law in such a matter is fairly well-settled. A brief reference to the authorities cited in this connection would suffice. Mulls, in his Hindu Law, 13th Edn. at page 473, observed:

“Presumption as to marriage and legitimacy : There is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its offspring if from the time of the alleged marriage the parties are recognised by all persons concerned as man and wife and are so described in important documents and on important occasions. The like presumption applies to the question whether the formal requisites of a valid marriage ceremony were satisfied. Similarly, the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children raises a strong presumption that she is the wife of that men. But this presumption may be rebutted by proof of facts showing that no marriage could have taken place.”

To the same effect are the observations of Maybe in his Treatise on Hindu Law and Usage, 11th Edn. at page 163:

“So also where a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”

There is a early decision of the Privy Council which arose from a case in Ceylon, Sastry Velaider Arenagari v. Sembecutti Veigalie 1881 A.C. 364, where the view was held that presumption of martiage ought to be raised when two people lived together for several years as husband and wife. This was followed by the Madras High Court in the well-known case of Maharaja of Kolhapur v. Sundara Iyer 48 Mad. 1 where after referring to Privy Council decision mentioned above, Kumaraswami Sastri, J. observed at page 153:

“I may state that though where nothing more is known than that persons have been living together as husband and wife and treated as such by the community for a long series of years, presumption of marriage, may, if nothing more appear, be drown, the presumption will be considerably weakened and it will be altogether rebutted where facts are shown which make it more consistent with continued concubinage than with legal marriage.”

There are no facts in the present case which will make the documentary evidence consistent more with the continued concubinage of Rajammal and Apuroopammal than with their states as the legally married wives of Seshachala Gramani. The customs of the country where the parties live and in particular the prevalence of the custom of concubinage came in for reference before the Privy Council in Ma Wun Pi v. Ma Kin 35 Cal. 232 a decision which is referred to by a Bench of this court in Maharaja of Kolhapur v. Sundaram Aiyar 48 Mad. 1. The Privy Council observed.—

“Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as matter of fact, a repute of marriage. But, in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word ‘wife’ is used by witnesses in regard to connations not reprobated by opinion, but not constituting marriage”.

A careful perusal of the facts of that case shows that in that case which came from lower Burma, there was no proof which the law required as evidence of persons who acted the part of neighbours or the public; nor was there any tangible evidence of recognition of the principal appellant, in her quality of wife, by people external to the house and independent of it. But in the present case, even assuming for the sake of argument that concubinage is not unknown in this country and in particular among the class of people namely Gramanis to which the parties belong, the evidence supported by the documents between the parties and strangers, and the evidence of practice observed on important occasions like marriage, funeral and so on, where a legitimate son will be distinguished from an illegitimate son, are all in support of the legality of the wifely status of the two ladies in question as well as the legitimacy of their children including Palani Ammal. We, therefore, confirm the finding of the learned Judge on these points.

xxxx

Points (3) and (4).

During the pendency of the appeals, certain documents were sought to be filed under Or. XLI R. 27. C.P.C., for being received as additional evidence, to show that extent of the ancestral nucleus of Seshachala. They included many more documents than what have been filed in the case. There was also an application filed under the same provision of the Code seeking to bring into the plaint schedule an additional number or of items of properties and joint family properties available for division in this partition suit. These petitions and the connected petition for amending the plaint are C.M.P. 3835 to 3836 of 1969, 3870 of 1969 and Appl. No. 957 of 1965. These applications for reception of additional documents at the appellate stage wore resisted by the opposite party. Their main contention was that the application were belated. One of the prerequisites fop allowing a petition to receive additional documents at the appellate stage under O. XLI R. 27, C.P.C., is that the party who seeks to adduce additional evidence must satisfy the court, that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or about the time when the decree under appeal was passed. One of the principal grounds urged, for the delay in the production of these documents, in the affidavit filed on behalf of the applicants is that, only recently, the applicants learnt that the registration officers were giving copies of nominal index, viz, the properties registered, the name of an individual and which were acquired by him during the particular period. It is urged that previously when applications were made for such copies the registration officers used to a k the applicants to furnish particulars of properties themselves before copies could be grained to them, that it was by acting on this fresh knowledge that the petitioners were able to get the nominal index in regard to the properties in the hands of Sonniappa as well as Seshachala and that many of these items are still available for division.

As against this contention, it is submitted by Mr. M.S. Venkatarama Iyor appearing for the contesting parties that the Registrar's office as per the nominal index, has all the time existed in the Registration Act, (vide S. 55) and that therefore, the contention that the extracts of nominal index from the Registrar's office could be obtained only recently is without substance. It is urged that if there was, as now contended, a refusal on the part of the registration authorities to issue copies of entries in the nominal index maintained in the Registrar's office daring the long period of time when the suit was pending between 1957 and 1963, for over six years, it was open to the parties to have sought for the intervention of the court itself to direct the Registrar to supply extracts from the nominal index. The reason now given for not filing the documents earlier appear to us to be untenable.

The apart, learned counsel, Sri M.S. Venkatarama Iyer appearing for the contesting defendants has submitted that the more admission of these documents would not enable the matter in controversy to be disposed of without examining what properties were dealt with by Thayammal after the death of her husband in 1878 and before Seshachala attained majority in 1889, a period of when she was in management. Learned counsel Sri Venkatarama Iyer has supplied us with a copy of an extract from the Sub Registrar's office during the aforesaid period which would show that Thayammal herself had sold several properties and mortgaged several properties with possession to strangers during the aforesaid period. In effect, if the additional documents now sought to be filed are to be received in evidence at the appellate stage the suit will have to be remanded for re-hearing on the question of (a) the extent of ancestral properties which Seshachala had when he attained majority, and (b) what items of these properties now remain available for division. Some of them might have been alienated by Seshachala himself. In such a case the alienees will have to be made parties to the partition suit before an effective decision could be given. In effect, it would mean that a litigation that has already lasted for 12 years would have to be prolonged for a much longer period before an effective adjudication could be made on the points raised. As mentioned already, the reasons given for the belated attempt to bring more properties into the plaint schedule and also to add more properties to these which Seshachala had at the time of his attaining majority are not at all adequate for justifying the great of relief under O. XLI R. 27 C.P.C. We, therefore, reject the prayer contained in these interlocutory applications for reception of additional documents and the consequential amendment of the plaint. Consequently we have to proceed on the basis that the ancestral properties now available for division are items 1 and 2 of the plaint schedule I and that the properties which Seshachala had with him as ancestral properties when he attained majority are only those which he admitted were in his possession, viz, items 1 to 5 mentioned in the Schedule to his written statement in the prior suit of 1922.

The subsequent enquiry in the court below proceeded on the basis that Seshachala augmented his assets by working for several years as toddy-shop renter, taking leases of toddy shops from the Government in Abkari auctions and that it was a family business which his father Senniappa also carried on. There was a contention that for the toddy business Seshachala mortgaged his ancestral properties for raising loans to pay the list. Secondly, he was also able to get income directly from the topes which contained coconut trees. From these data, it was urged that the subsequent acquisition of Seshachala must be treated also as joint family properties in which his descendants are entitled to a share.

We have made reference that among items 1 to 5 in the schedule to the plaint in O.S. No. 289 of 1922, Ex. P. 6, only item 1 corresponded to Samadhi Thottam-garden or coconut tope, and the other properties are three houses and godown. The available evidence shows that the income from these properties would have been very meagre, indeed and would not have provided adequate nucleus for acquiring the immoveable properties and shares mentioned in the schedule to the present plaint which worked out to nearly Rs. 2,00,000. D.W. 5, Thandavamurthy deposed that he was a tenant in one of the houses, Ne. 4 Thulasinga Gramani Street, which was subsequently given to Balakrishna Gramani. The Rent was Rs. 2 per month. Seshachala Gramani was living with his large family in another house. The Samadhi Thottam containing a cocoanut tope, according to the evidence of D.W. 9, Sivakolunda, fetched an income of about Rs. 20 per month. P.W. 1 Ponnevelu Gramani deposed that there were 200 trees in the thottam. In his cross-examination, he stated that the income from the cocoanut tope would amount to Rs. 20 to Rs. 25 per month, though he deposed is chief examination that Seshachala Gramani was getting Rs. 10 per day from his toddy shop business. Seshachala also pleaded on the earlier decision that such ancestral properties as he had at the time when he attained majority were mortgaged to the hilt and that he had to redeem them from his own earnings. The learned Judge also observed that the godown and the house is Venkatakrishnan Street mentioned as items 4 and 5 in Ex. P. 6 would only fetch a very meager income. In any event, there is no evidence to show the income they yielded to Seshachala.

The law on the subject of ancestral nucleus is well-established, by authority. In Appalaswami v. Suryanarayanamurthi A.I.R. 1947 P.C. 189 the Privy Council observed:

“Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.”

In Srinivasa v. Narayan A.I.R. 1954 S.C. 379 this principle has been followed by the Supreme Court. This principle was also followed by a Bench of this court in Rathinam v. Thangasami Pillai (1967) 1-M.L.J. 360. This last cited decision also contains the additional observations:

“What has to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. Where the income from ancestral property was not sufficient even for the maintenance of the members of the family, or where the outgoings exceeded the value of the nucleus the plaintiff cannot be said to have discharged the initial burden which lay on him.”

It is clear from the evidence in the present case that the ancestral nucleus in the hands of Seshachala yielded only very meager income which might not have even sufficed to meet the requirements for the maintenance of his family. The plaintiffs have not discharged the burden of proving the existence of an adequate ancestral nucleus, which, from its very nature and relative value, would have sufficed for the acquisition of a large extent of properties to be claimed ancestral and of which division is sought on that footing by the plaintiffs.

A considerable amount of argument was put forward in the lower court that Senniappa was also doing business as toddy shop renter and that Seshachala, when he did the toddy business, was only continuing the business of his father, and that therefore the income which Seshachala earned from the toddy business and which was utilised for acquiring properties must be treated as income from joint family business, and the properties must be treated as ancestral. P.W. 1, Ponnuvelu Gramani, deposed that his father was a toddy tappor under Senniappa Gramanai. In the plaint Ex. P. 6 Balakrishna Gramani in C.S. No. 289 of 1922, it was stated that Senniappa, his grandfather, was an Abkari and general contractor. But the learned Judge points out that Balakrishna could not have known anything about the business of his paternal grandfather Senniappa. Even assuming, for the sake of argument, that Senniappa did business as a toddy renter or contractor, it would not suffice to establish that Seshachala, when he did the business as toddy renter was doing it as joint family business.

Learned counsel Sri Ranganatha Sastri appearing for some of the contesting respondents urged that the court could take judicial notice of the very nature of the business conducted by a toddy renter, for ruling cut the conception of joint family business, so far as the toddy renting activity is concerned. Auctions are held every year for specified toddy shops by the Revenne Divisional Officer with the help of Abkari officers and the right to sell toddy is given to the highest bidder. After such auction, the successful bidder offers security to the satisfaction of the authorities for the due payment of the rent the security being calculated at so many times the rental value. Thereafter, the successful bidder has to sell toddy in a shop located within specified boundaries. For the purpose of getting supply of toddy he has to apply for tree tapping licence to tap cocoanut trees in specified locality which will be marked for the purpose. He has to pay tree tax to the authorities and also a certain lease amount to the owners of the trees. But what is to be stressed in this connection, is that there is no guarantee that a successful bidder for a toddy shop for one year would get it for the succeeding year. That would depend on the result of the auction in the succeeding year. In other words, the nature of the business is not continuous, unlike other businesses where, once capital is invested in the business and the business is opened in a particular locality, the enterpreneur can reasonably expect continuity for operations over a long period of time. He could draw on his capital, use it for his enterprise for earning income. He can carry forward surplus stock from one year to the other. But toddy business is quite different. It can be viewed as a business of a sporadic character with no continuity from year to year. It may happen that the renter may not succeed in getting any shops whatever in one year or in the locality where he had licensed a shop in the previous year. He may have to go to an entirety new locality and take a risk in conducting successful sales in a shop located there. There observations show that intrinsic character of the toddy renting business is such that its success does not depend upon investment of large capital and that it has got a certain element of chance about it, because of the requirement of auction to the highest bidder, and also because the ultimate success of the business depends upon the diligence of the successful renter in effecting maximum sales during the short period of the lease to consumers. The success of such an enterprise depends preponderantly on his own enterprise and capacity for organisation.

Sir George Rankin observed in Bhurumal v. Jagannath A.I.R. 1942 P.C. page 13.

“special considerations apply to the question whether or not a business belongs to the family or to the individual member who carries it on. If it be a joint family business, then all the members of the family are liable for its debts upon the terms and to the extent laid down by the Hindu Law. Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business”.

In a decision of a Bench of this court to which one of us was a party, Padmini Chandrasekhara v. Somasundara (1965) 2 M.L.J. 65 Ramachandra Iyer C.J. after referring to the remarks of Sir George Rankle extracted above, observed at page 72:

“Whether a business standing in the name of a member of a family belongs to the family itself, in the sense that it was begun and carried on with the assistance of joint family property, or whether it is the separate one of a member will be a question of fact, the burden of proof, being on the person who claims a share in the business. It will be competent for such a person to show the joint family character of the business by proving that the family contracted to the commencement or carrying on the business, or that the business itself was treated by the member, in whose name it was standing, as part of the joint family property”.

Obviously, in the toddy shop business, Seshachala could not have helped his father to earn income, because he was a minor aged 7 years, when his father died. There is evidence that some of Seshachala's sons, viz, Sivakolundu (D.W. 9) did independent toddy business between 1922 and 1940 and the seventh defendant Girisankar took toddy contracts in his name as evidenced by the Certificate of the Collector, Ex. D. 31, which shows that he was an Abkhari renter of toddy shop No. 42 in Sanjeevirayanpet, Madras between 1940 and 1948 But D.W. 9 Sivakolundu Gramani deposed that his father incurred loss in the toddy business and started other business thereafter. P.W. 1 Ponnuvelu Gramani, on the other hand, deposed that Seshachala did not incur loss in the toddy business but he had other businesses also like the business of supplying dealwood boxes, business in the purchase and export of cut pieces from the army clothing depot, the business of supplying mutton, rice and other provisions to the hospitals, oil mill business and extensive business in stocks and shares. In any event, Seshachala could not have carried on the toddy business after 1947, when Prohibition was introduced: He lived for nearly 12 years i.e., till 1958. During that period, he was also acquiring stocks and shares in his name. This would indicate that Seshachala was not exclusively depending upon toddy business, but had also other businesses and speculated successfully in stocks and shares, and thus acquired considerable assets, both moveable and immoveable. There is no reliable evidence to show that the nucleus of ancestral property had any real connection with these acquisitions. On the other hand, there is every probability that the acquisitions were the result of Seshachala's self exertions as a successful man of business. Reference in this connection, can be made to a decision of the Patna High Court in Chandmul Rajgarhia v. Commissioner of Income tax (1966) 2 M.L.J. 239 where the following observations are found:

“An undivided member of Joint Hindu family can acquire and own separate property with his own earnings. The presence of sufficient nucleus with the joint family according to whose nature and extent, it is possible to make the acquisition of properties, raises a presumption of new acquisitions, though in the name of individual member, being for the joint family. Such presumption, however, does not extend to the starting of a business in the name of an individual member of the family. If a new branch or e xtended activity of an existing or ancestral business is brought into existence, though under another name and style, the inference may lean in favour of the joint family; but if altogether a new business is started by and in the name of a particular member of the family, the presumption will be that it is his own unless otherwise proved. In the case of a new business, more than the capital, the individual skill and exertion is required, and therefore, the primary presumption is different in favour of t he member who runs it”

A considerable part of the arguments before as was devoted to the fact that on 10th November, 1891, Seshachala, for himself and as guardian of his minor son Sanniappa Gramani, executed a mortgage, Ex. P-3, for a sum of Rs. 1,500 is favour of one Muthuswami Iyer. He had recited therein that he was running a toddy shop. This is what the document recites further:

“With a view to obtain licence for the purpose of tapping toddy from the coconut trees standing in our gardens, after the said trees are numbered, and with a view to pay the amount in respect of the sane to Abkari department, we have already executed a promissory note en the 10th September, current year, for a sum of Rs. 1,000 in favour of you. For the aforesaid purpose and for the purpose of maintaining our family, the amount borrowed by me from you on this date is Rs. 500. In all the total amount borrowed by me is Rs. 1,500 For the aforesaid amount, we shall pay interest at the rate of Rs. 1 per Rs. 100 per month. We or our heirs have agreed to pay under this deed, the total amount of interest of Rs. 15 (Rs. Fifteen) to you or to your order before the 3rd day of every month. Further, we will pay the aforesaid principal amount of Rs. 1,500 to you or to your order on demand by you and shall redeem the said cocoanut grove and site together with the documents relating to the same. So long as the cocoanut grove and site remain in your possession under the mortgage deed, the irrigation charges etc., in respect of the same shall be borne by as at our cost. We shall also pay tax, etc.”

There was another mortgage Ex. P-4 dated 1st December, 1892 in respect of the same property as in Ex. P-3, namely, the house and thottam. The mortgagee is in favour of one Chettiar and the document recites:

“In the matter of our having borrowed from you now and then, for the purpose of paying Government kist vagaira in respect of toddy business, which we are carrying on for the purpose of maintaining our family, the balance amount, excluding the amounts paid towards the decree passed in S.C.S. No. 18668 of 1891 on the file of the court of the Small Causes, Madras, the amount due under the promissory note, and the aforesaid amount due as on account and the aggregate amount made up of principal and interest till the 30th day of November, is Rs. 1181-12-3. The amount received in cash on this date is Rs. 518-3-9. In all total amount is Rs. 1,700In all these two properties (Items Nos. 1 and 2 stated above) as per the terms mentioned in the first mortgage deed executed in favour of the aforesaid Muthuswami Iyer have been mortgaged to you by way of second mortgage and the amount received by us is Rs. 1,700.”

It is urged by learned counsel Sri R. Gopalaswami Iyengar appearing for the appellants that the two documents show that the toddy business which Seshachala was doing was being carried on with the aid of joint family properties, which were used in the manner stated above in the two mortgages. Consequently, the earning from the toddy business and the properties acquired from such earning must be viewed as joint family properties. Learned counsel referred to the decision of the Allahabad High Court in Mangal Singh v. Harkesh A.I.R. 1958 All. 42. Where is an observation in that judgment to the effect that “the general rule which in common to Mitakshara and Dayabhaga both appears to be that whatever may be the extent of the contribution of the acquiring member himself cut of his self-acquired fund if he takes the aid of any portion of joint or ancestral property in acquiring the property, however, small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by him as a self acquisition. The extent of his contribution or that of the family fund is immaterial. If any help is taken from the family property it is enough to make the self acquired property the property of the family.” This judgment extracted the well-known text Yagnavalkya, dealing with property not liable to partition:

(Hindi)

which means “whatever else is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend or a gift at nuptials, does not appertain to co-heirs,” The Allahabad High Court treats this text as well as the views of certain commentators, both ancient and modern, as authority for the view extracted above as common to both Mitakshara and Daya Bhaga. But there is a significant distinction in the Daya Bhaga law, there is a provision that where with a small aid from paternal property, separate and distinct properties are acquired through the exertions of particular members of a joint Hindu family, such members are entitled to a double share at the time of separation. The significance of this deviation in the case of Dayabhaga law makes reference to the small aid from paternal property taken by a particular co-sharer, who supplements it with his own exertions and acquires property. The property so required becomes joint family property, but the co-sharer who acquires it presumably taking in, account his exertions and the smallness of the aid which he has taken from the joint family properties, gets a double share. But the Allahabad High Court appears to have extended the principle to cases under the Mitakshara law also, where a co-sharer, who takes a small aid from the joint family properties—insignificant that aid may be and supplements it with his own exertions, will be entitled only to the usual share. Apart from the above in commenting on the text of Yajnavalkya extracted above, later decisions of the Supreme Court, seem to lay down certain principles which will be directly relevant for our case. The text of Yagnavaikya came in for reference in Dhunwater v. Commissioner of Income tax , (A.I.R. 1968 S.C. 683, At Page 688 the Supreme Court extracted the Sanskrit text of Yajnavalkya given above. Reference is made to a later commentator Davanna Bhatta who explained in his Smriti Chandrika, the formula (Hindi) (without detriment to anceestral property) as “property acquired by labour without prejudice to the father's estate”. The Supreme Court in A.I.R. 1968 S.C. 683, dealt with the following facts: The assesses was a Hindu undivided family represented by its Kartha. There was a partnership business of the numbers of the family. The kartha was paid remuneration for his participating in the partnership. The question arose in regard to assessing this remuneration as joint family income for income tax assessment. Applying the principle of ‘detriment’, the Supreme Court held that there was real and sufficient connection between the investment from the Hindu joint family funds into the partnership business and the remuneration paid to the kartha Dhanwatry under the deed of partnership and that in such circumstances toe remuneration of the kartha was cot earned without detriment to the Hindu joint family. In an earlier case in the same year (1968) — Palaniappa v. Inaometax Commissioner, Madras A.I.R. 1968, S.C. 678, dealing with the case of remuneration of the Managing Director of a company in which the members of a joint family were share-holder, the Supreme Court held that there was not detriment to the family property and no part of the family funds had been spent or utilised for acquiring the remuneration of the managing director and therefore the amount earned by the managing director was not assessable as income of the joint family. Among their reasons, the Supreme Court gave the reason that ‘there was no real connection between the investment of joint family funds in the purchase of the shares and the appointment of the Kartha as managing director of the company”. In the above case, the Supreme Court also referred to an earlier judgment in Piyarelal Adishwarlal v. Commissioner of Income tax, Delhi A.I.R. 1960, S.C. 997, where a member of a Hindu undivided family had furnished as a security the properties of the family under an agreement whereby he was appointed treasurer of a Bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu undivided family, because the properties of the family were furnished as security. But this claim was rejected by the Supreme Court on the ground that there was no detriment and risk to the joint family property and the emoluments of the treasurer could not be treated as an accretion to the income of the Hindu undivided family. The Supreme Court considered that the case before it, viz., Palaniappa v. Income tax Commissioner, Madras A.I.R. 1968 S.C. 678 had analogy to the decision in Piyarelal Adisharlal v. Commissioner of Income tax Delhi A.I.R. 1960 S.C. 977 where the treasurer offered the family property as security.

This High Court In Sivaramakrishnan v. Kaveri A.I.R. 1955 Mad. 705 dealing with the principle of detriment to the family, observed that where money raised on the security of ancestral property is used for running a business which produced the profits out of which certain acquisitions were made by a sole coparcener but long before a son was born, there is no detriment to the interests of any coparcener and the business of the subsequent acquisitions cannot be treated as coparcenery property by recourse to the theory of accession or accretion, if no evidence of such int ention can be gathered from the purchase or from the dealing”.

Learned counsel Sri R. Gopalaswami Alyangar, appearing for the appellants, sought to distinguish the last cited decision from the present case by contending that here it was a case of mortgage of the property effected by Seshachala and his minor son. But in our view, the reference to the mortgagor being the sole coparcener and his son being born after the mortgage was redeemed was made only with reference to the facts of that particular case, but such a reference cannot be treated as an invariable rule of limitation. It appears to us that when ancestral property is mortgaged to raise funds for carrying en the business of a single member the question whether, as an result, the ancestral property has suffered detriment must be viewed with reference to the circumstances of each case. One crucial fact in this case is that the property in its entirety is available for division, when partition of the family property is sought, and therefore the risk, if any, to the property by reason of its having remained as a security for the loan in the shape of any actual detriment. In the case of treasurer of a bank offering the family property as security for discharging his duties unsatisfactorily, the Supreme Court held that it suffered no detriment, and that the earnings of the treasurer would not be joint family assets. Similarly, when the property remains merely as security for the discharge of a loan, and the loan is ultimately discharged without any detriment to the joint family property, the position can be treated as analogous. A similar view was taken by the Mysore High Court in Mahalaxmiamma v. Radhakrishna Rao A.I.R. 1968 Mys. 229.

“If ancestral property is sold by a coparcener and thus the property lost to the family and is not available to a member at a subsequent date and if by such sale, the other properties are acquired along with the aid of self-acquired funds, then the property acquired under such document is a joint family property and must be held to have been acquired by detriment to the joint family property. The detriment caused to the ancestral property must be a real detriment. Neither the mortgage nor the use of the joint family property as security would make the acquisitions a joint family property.”

Before we part with this part of the case, a brief reference can be made to the fact that the mortgagors purported to give possession to the mortgagee. The word used in this connection in the document Ex. P. 3 is swadheenakuduvai . The case was reopened and an opportunity was given to the parties to deal with the recitals in the document Ex. P. 3. During the course of the arguments, learned counsel for the appellants submitted that such recitals about possession are often found in mortgage documents by way of a formality, and that the proper thing is to take into account other recitals in the document as a whole. Now in the mortgage mentioned above, the preamble itself says “with a view to obtain funds for the purpose of tapping toddy from the cocoanut trees standing in our gardens, after the said trees are numbered”. This would show that the mortgagors did not intend to part with the enjoyment of cocoanut trees and the gardens, but wanted to retain them for tapping toddy. Secondly, it is pointed out that there is a provision for interest on the loan payable at the rate of 12 percent by the mortgagor which will be inconsistent with the surrender of enjoyment of the property mortgaged. The interest works out to 12 per cent and must be considered by itself as a fair return for a loan but on the security of immoveable properties. Hence the payment of interest at the above rate must be viewed as a payment in lieu of the fact that the mortgagors retained the enjoyment of the cocoanut trees, when recitals in the documents are taken together, it is reasonable to infer that the recital about possession Swadheenakuduvai in the document does not really constitute a usufructuary mortgage in which the mortgagor actually surrendered the income from the properties. Further we do not know for what period the property remained under mortgage and where it was redeemed by Seshachala. From all the above circumstances, it appears to us that the more appropriate way is to view the document only as constituting security for the loan. But the offer of such security led to no real detriment to the ancestral property. It is available for partition. Therefore, applying the principle of the about decisions, we hold that this is not a case where the ancestral nucleus suffered any detriment in connection with the acquisition of assets by Seshachala by his own efforts, nor is it a case of a use of the ancestral nucleus by Seshachala which had any real relationship with the acquisition of the considerable extent of assets both immovable and movable. We hold that the acquisition by Seshachala was entirely due to his own enterprise and skill in business activity.

In regard to the shares which stand in the name of Seshachala and the seventh defendant, either or survivor, the learned Judge has relied upon the well-known principle laid down in Guranditta v. Ramditta 55 Cal. 944 and Nagarajamma v. State Bank of India (1962) 1 A.W.R. 51 for the following propositions: When a deposit is made by a Hindu in the name of himself and another payable to either or survivor, there is a resulting trust in favour of the person who made the deposit and (2) in case of his death, it does not constitute a gift by him to the joint depositor. On the other hand, Myis Fitzalan Chowdry v. Imperial Bank of India 68 L.W. 865 was a case where, having regard to the evidence and the surrounding circumstances, the conversion of the individual current account into a joint either or survivor account was held to operate to vest the title to the amount in the account in both the persons subject to the condition that, on either of the surviving the other, the balance is to be taken by the survivor absolutely. There is no satisfactory evidence to show in this case, that Girija Shankar, the seventh defendant, had sufficient income of his own to enable him to get the large amounts covered by these shares which exceed a lakh of rupees. The value of the shares standing in the sole name of defendant 7 on 4th June 1958 came only to Rs. 6750.

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But there was no adequate evidence to prove that the first defendant supplied the funds for these shares, or that in the alternative, notwithstanding their being in the name of the seventh defendant, he wanted to retain the beneficiary title in himself. The finding of the learned Judge in regard to these scares which stand in the name of defendant 7 is upheld.

One ether argument was argued before us and that was in regard to the form of the decree to be passed in the suit. The argument was that Seshachala died after the partition suit was filed and before the decree was passed. By the time he died, the Hindu Succession Act of 1956 had come into force, it was urged that that court in granting the relief in the decree could take into account the principle of deviation of interest in coparcenary property under S. 6 of the Hindu Succession Act for fixing the shares of the heirs of Seshachala of his interest in the coparcenary property.

It would fellow from the circumstance of the death of Seshachala after the suit was filed that his one half share in the ancestral items, plaint items 1 and 2, has to be distributed in accordance with the principles laid down in S. 6 of the Hindu Succession Act. The result is that it will exclude the sons of Seshachala and their sons, who have already separated from him during his lifetime, namely, the group consisting of defendants 10, 21 and 26 to 28. It will also exclude the plaintiffs and the second defendant, because the plaintiffs by virtue of their having failed a suit for partition, and the second defendant, must be treated as having become separated in states from the date of the plaint. The fast that some of the plaintiffs were minors would make no difference to the application of the above principal, bearing in mind the view of law laid down in Pedasubbayya v. Akkammaa A.I.R. 1958 S.C. 1047 which is as fellows:—

“In our judgment, when the law permits a person interested in a miner to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor, and a suit institution ea his behalf, if found to be beneficial, must be held to bring about a division in status. Whet was the view taken in a Full Bench decision of the Madras High Court in Rangasayi v. Nagaratnmmma 57 Madras 65 = A.I.R. 1933 Mad 890 wherein Ramesam J stated the position thus.

The instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree. It is no objection to the maintainability of the salt In my opinion, therefore, in all such cases, the severance is effected from the date of the suit, conditional on the court being able to find that the suit when filed was for the benefit of the minor”.

The same view has been taken in Ramsing v. Fakira I.L.R. 1939 Bom 256 = A.I.R. 1939 Bom. 169 and Mandaliprasad v. Remcharanlal ILR 1947 Nag 848 = AIR 1948 Nag. 1 and we agree with these decisions. Learned counsel appearing for the plaintiffs referred to Explanation II to S. 6 of the Hindu Succession Act, which is in the following terms:

“Nothing contained in the proviso to this section shall be castrated as enabling a person who has sipsrated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein”.

He argued that the word “separated” used in this explanation will not cover separation in states but only division by metes and bonds. We are unable to agree with this interpretation, of the explanation. The ward ‘separated’ means separation in states. This has the effect of exciting the plaintiffs and D.2 from claiming a share in Seshachala's one half share which would devolve only in such persons who can claim an interest under the principle laid down in S. 6 of the Hindu Succession Act.

Learned counsel for the plaintiffs represented at this stage that would not press his objections to the trial court's decree in regard to the different shares allotted out of items 1 and 2 of the plaint schedule. As against this, we would refer to Order XLI, rule 33 C.P.C. which enables the appellate court to grant relief in such a case by passing a decree which ought to have been passed in the circumstances of the case, notwithstanding the fact the appeal is only as reads part of the decree. We also note that in O.S.A. 98 of 1963, the appellants have objected to the grant of stares in Seshachala's one half share to those members of the family who bad separated from him during his lifetime itself.

For the aforesaid reasons, we modify the decrees of the trial court by excluding from the partition, the plaintiffs, the second defendant and the other defendants mentioned above (defendants 10, 21 and 26 to 28), in regard to the one half share of Seshachala in the items found to be ancestor items, namely, plaint schedule items 1 and 2. The decree is confirmed in other respects.

In the result O.S.A. 11 of 1964 is dismissed. O.S.A. 98 of 1963 is also dismissed. O.S.A. 90 of 1963 is allowed in part and the decree of the trial court is modified as mentioned above in the circumstances of this case the costs of the parties to the appeals (appellants and contesting respondents) will come out of the estate. Advocate's fee, one set to be fixed in O.S.A. 90 of 1963.

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The first point mentioned in the letter of the appellant's counsel is that at page 59 of our judgment dated 30th April 1969 there is an omission to mention defendants 3 and 10 to 28 among the persons to be excluded from participating in the half share of Seshachala in items 1 and 2 of the plaint schedule. This is found to be due to a clerical error and the advocate for the opposite parties, to whom notices has been given, has no objection to the error being rectified. Ordered accordingly.

So far as the second point regarding costs is concerned, it is not in dispute that it was ear decision that costs of the parties should be provided only in O.S.A. 90 of 1963, that it should come out of the estate and that no costs should be allowed in the other two appeals. The last portion of our judgment will be amended accordingly.